Part 30

In order to get some idea of the work of the pontifices at this time, let us consider one or two of these difficulties and problems.

Within the family every act, every relation, was matter of religion; the numina had to be considered in regard to it. The end and aim, then as throughout Roman history, was the maintenance of the sacra of the family, without which it could not be conceived as existing—the due worship of its deities, and the religious care of its dead. Take marriage as an example: "the entry of a bride into the household—of one who as yet had no lot in the family life—meant some straining of the relation between the divine and human members," and the human part of the family must be assured that the divine part is willing to accept her before the step can be regarded as complete. She has to enter the family in such a way as to share in its sacra; and if confarreatio was (as we may believe) the oldest form of patrician marriage, the bride was subjected to a ceremony which was plainly of a sacramental character—the sacred cake of far being partaken of by both bride and bridegroom in the presence of the highest religious authority of the State. In the simplest form of society there would be no call for further priestly interference in marriage; but in a society growing more numerous and complex, exceptions, abnormal conditions begin to show themselves, and new problems arise, which must be solved by new expedients, prescriptions, permissions, devices, or fictions. For these the religious authorities are solely responsible; for what is a matter of religious interest to the family is also matter of religious interest to the State, simply because the State is composed of families in the same sense as the human body is composed of cellular tissue. All this, we believe, was once the work of the Rex, perhaps with the college of pontifices to help him; when the kingship disappeared it became the work of that college solely, with the pontifex maximus as the chief authority.

So, too, in all other questions which concerned the maintenance of the family, and especially in regard to the devolution of property. I am here only illustrating the way in which the pontifical college acquired their paramount influence by having a quantity of new and difficult work forced upon them, and it is not part of my plan to explain the early history of adoptions and wills; but I may give a single concrete illustration for the benefit of those who are not versed in Roman law. It must constantly have happened, in that disturbed period which brought the kingship to an end, that by death or capture in war a family was left without male heirs. Daughters could not take their place, because the sacra of a family could not be maintained by daughters, who would, in the natural order of things, be sooner or later married and so become members of other families. Hence the expedient was adopted of making a filius familias of another family a member of your own; and this, like marriage, involved a straining of the relations between the human and divine members of your family, and was thus a matter for the religious authorities to contrive in such a manner as to preserve the pax between them. The difficulty was overcome by the practical wisdom of the pontifical college, which held a solemn inquiry into the case before submitting it to the people in specially summoned assembly (comitia calata); and thus the new filius familias was enabled not only to renounce his own sacra (detestatio sacrorum), but to pass into the guardianship of another set of sacra, without incurring the anger of the numina concerned with the welfare of either.

Such difficult matters as these, and many more connected directly or indirectly with the devolution of property, such as the guardianship of women and of the incapable, the power to dispose of property otherwise than by the original rules of succession, the law of burial and the care of the dead,—all these, at the time of which I am speaking, must have been among the secrets of the pontifices; and we can also suspect, though without being sure of our facts, that the great increase of the importance of the plebs under the Etruscan dynasty offered further opportunities for the growth alike of the work and influence of the college. Above all, we must remember that this work was done in secret, that the mysteries of adjustment were unknown to the people when once they had passed out of the ken of family and gens, and that there could have been no appeal from the pontifices to any other body. Nay, more, we must also bear in mind that this body of religious experts was self-electing. Until the lex Domitia of 104 B.C. both pontifices and augurs filled up their own colleges with persons whom they believed qualified both by knowledge and disposition. Thus it would seem that there was every chance that in that early Rome, where neither in family nor State could anything be undertaken without some reference to the religious authority, where the pax deorum was the one essential object of public and private life, a power might be developed apt one day not only to petrify religion and stultify its worshippers, but thereby also to cramp the energies of the community, acting as an obstacle to its development within its walls and without. Had Roman law remained entirely in the hands of this self-electing college, one of two things must have happened: either that college would have become purely secular in character, or the wonderful legal system that we still enjoy would never have had space to grow up. But this was not to be; with the publication of the XII. Tables a new era opens.

If we reject, as we conscientiously may, the latest attempts of criticism to post-date the drawing up of the Tables, and in fact to destroy their historical value for us, what is their significance for our present purpose? It is simply that in the middle of the fifth century B.C. the pontifices lost a monopoly—ceased to be the sole depositaries of the rules of law affecting the pax deorum, and that new rules are being set down in writing, on the basis of old custom, which more especially affect the relations between the human citizens. For both the ius divinum and the ius civile are to be found in this collection, but the latter is beginning to assert its independence. I think we may say, without much hesitation, that this event, however doubtful its traditional details, did actually save Rome from either of the two consequences to which I alluded just now. The constitution developed itself on lay and not on ecclesiastical lines, leaving the pontifices other work to do, and Roman civil law was eventually able to free itself from the trammels of the ius divinum.

But for another century the college still found abundant legal work to do, for it was not likely that at Rome, the most conservative of all city-states, it could be quickly set aside, or that the old ideas of law could so speedily disappear. What then was this work?

When rules of civil law were written down, it was still necessary to deal with them in two ways which were open to the pontifices, and indeed at this early time to no one else. First, it was necessary to make their provisions effectual by prescribing in each case the proper method of procedure (actio). Now it is most important to grasp the fact that procedure in the ius civile was originally of precisely the same nature as procedure in the ius divinum, and that precisely the same rigid exactness is indispensable in both. Action and formula in civil law belong to the same class of practices as sacrifice and prayer in religious law, and spring from the same mental soil. Thus, for example, the most familiar case of action and formula in civil law, the sacramentum, was, as the name proves, a piece of religious procedure, i.e. the deposition in a sacred spot of a sum of money which the suitor in the case would forfeit if he lost it, together with the utterance of a certain formula of words which must be correctly spoken. If we choose to go back so far, we may even see in this combination of formularised act and speech a survival of magical or quasi-magical belief; but this is matter rather for the anthropologist than the historian of religion. The point for us at this moment is that these acts and formulae (legis actiones, as they are known in Roman law) could not suddenly or rapidly pass out of the hands of that body of skilled experts which had so long been in sole possession of them; the publication of old and new rules of law in the XII. Tables made no immediate difference in this respect. The consuls, the new civil executive, were still in no sense necessarily skilled in such matters, and were without the prestige of the former executive, the Rex; they were also doubtless busy with other work, especially in the field. Nothing could be more natural than that the pontifices should continue to provide the procedure for the now written law, just as they had formerly supplied it for the unwritten.

So, too, with the interpretation of the Tables; this was the second part of the work that still remained to them. Writing was in that age a mystery to the mass of the population, and doubtless the idea was still in their minds that there was something supernatural about it. Writing, in fact, as well as formularised action and speech, may have had the flavour of magic about it. However that may be, there can be no doubt that the interpretation of a legal document was in those days a much more serious, if a less arduous business, than it is now. Here again, then, it seems perfectly natural that there should be no rapid or violent change in the personnel of those deemed capable of such interpretation; there was no other body of experts capable of the work; the pontifices remained iuris-consulti, i.e. interpreters and advisers, and in the course of two and a half centuries accumulated an amount of material that formed a basis for the first published system of Roman law, the ius Aelianum or tripartita of 200 B.C. It is most useful to remember, as proof of this, that one member of the college was selected every year for the special purpose of helping the people with advice in matters of civil law, both in regard to interpretation and the choice of legis actiones; so we are expressly told by Pomponius, who adds that this practice continued for about a hundred years after the publication of the Tables, i.e. till the election of the first praetor in 366. After that date the ius civile emerges more distinctly from the old body of law, which included also the ius divinum, and its interpretation was no longer a matter purely for religious experts. In 337 we hear of the first plebeian praetor—truly a momentous event, showing that the old profound belief is dying out, which demanded a religious and patrician qualification for all legal work. And at the end of the fourth century comes the publication, not only of the legis actiones, but of the Fasti, i.e. even of that most vital part of the ius divinum, which distinguished the times and seasons belonging to the numina from those belonging to the human citizens. One might well suppose that the power of the pontifices was on the wane, for they had lost another monopoly.

And indeed in one sense this was so. It must have been so, for as the range of the State's activity increased, the sphere of religious influence became relatively less. Marriage, for example, though it still needed a religious ceremony in common opinion, ceased to need it in the eye of the law—a change which is familiar to us in our own age. The pontifex was no longer indispensable to the suitor at law, nor to the citizen who wished to know on what day he might proceed with his suit. The college undoubtedly ceased to be the powerful secretly-acting body in whose hands was the entire religio of the citizen, i.e. the decision of all points on which he might feel the old anxious nervousness about the good-will of the gods. But now we mark a change which gave the old institution new life and new work. At the end of this fourth century (300 B.C.) it was thrown open to plebeians by the lex Ogulnia; and, as I have already mentioned, within a few years we come upon a plebeian pontifex maximus, who was not even a Roman by birth, yet one of the most famous in the whole series of the holders of that great office. Most probably, too, the numbers of the members have already been increased from five to nine, of whom five must be plebeian. These members begin to be found holding also civil magistracies, and the pontifex maximus was often a consul of the year. It is quite plain then that this priestly office is becoming more and more secularised; it expands with the new order of things instead of shrinking into itself. It leaves religion, in the proper sense of the word, far behind. The sacrificing priests, the flamines, etc., who were the humbler members in a technical sense of the same college, go on with their proper and strictly religious work under the supervision of the pontifex maximus, but they steadily become of less importance as the greater members become secularised in their functions and their ambitions. And these greater members, instead of becoming stranded on a barren shore of antique religion, boldly venture into a new sphere of human life, and add definite secular work to their old religious functions.

The events of the latter part of the fourth century B.C., culminating in the publication of the Fasti and the legis actiones, probably meant much more for the Romans than we can divine by the uncertain light of historical imagination. It is the age of expansion, internal and external; the old patrician exclusive rule was gone beyond recall; the plebeians had forced their way into every department of government, including at last even the great religious collegia; the old Latin league had been broken up, and the Latin cities organised in various new relations to Rome, each one being connected with the suzerain city by a separate treaty, sealed with religious sanctions. After the Samnite wars and the struggle with Pyrrhus, further organisation was necessary, and there arose by degrees a loose system of union which we are accustomed to call the Italian confederation. The adaptation of all these new conditions to the existing order of things at Rome was the work of the senate and magistrates so far as it concerned human beings only; but so far as it affected the relations of the divine inhabitants of the various communities it must have been the work of the pontifices. That work is indeed almost entirely hidden from us, for Livy's books of this period are lost, and Livy is the only historian who has preserved for us in any substance the religious side of Rome's public life. But what we have learnt in the course of these lectures will have made it plain that no political changes could take place without involving religious adaptation, and also that the only body qualified to undertake such adaptation was the pontifical college.

We may thus be quite certain, that though they had lost their old monopoly of religious knowledge, the pontifices found plenty of fresh work to do in this period. It is my belief that they now became more active than they ever had been. From this time, for example, we may almost certainly date their literary or quasi-literary activity; I mean the practice of recording the leading events of each year, which may have had its origin a century earlier, with the eclipse of the sun in or about 404 B.C. I should guess that after the admission of the plebeians to the college in 300 B.C., the new members put fresh life and vigour into the old work, and developed it in various directions. It is in this period that I am inclined to attribute to the college that zeal for compiling and perhaps inventing religious formulae of all kinds, which took shape in the libri or commentarii pontificum, and embodied that strange manual of the methods of addressing deities, which we know as Indigitamenta. And again, in the skilled work of the admission of new deities and the dedication of their temples, occasioned by the new organisation and condition of Italy, and lastly, in the supervision of the proper methods of expiating prodigia, which (though the habit is doubtless an old one) began henceforward to be reported to the Senate from all parts of the ager Romanus and even beyond, their meetings in the Regia must have been fully occupied. Our loss is great indeed in the total want of detail about the life and character of the great plebeian pontifex maximus of the first half of the third century B.C., that Titus Coruncanius whom I have already mentioned as being a Latin by birth; for Cicero declares that the commentarii of the college showed him as a man of the greatest ability, whose reputation remained for ages as one who was ready with wise counsel in matters both public and private. Coupling him with two other memorable holders of the office, he says that "et in senatu et apud populum et in causis amicorum et domi et militiae consilium suum fidemque praestabant." This passage should be remembered as a valuable illustration of the way in which the college and its head were becoming more and more occupied with secular business; it is worth noting, too, that this great man was himself consul in the year 280, and took a useful part in the first campaign against Pyrrhus. Yet Cicero makes it plain that he looked on him also as a great figure in religious matters—nay, even as a man whom the gods loved.

I will finish this lecture by illustrating briefly this renewed and extended activity of the pontifices, so far as we can dimly trace it in this third century B.C. Most of it is connected more or less directly with the State religion, yet with a tendency to become more and more secular and perfunctory; the word cura would express it better than caerimonia, and caerimonia better than religio. The care of the calendar, for example (a technical matter which lies outside my province in these lectures), was originally of religious importance, because the oldest religious festivals marked operations of husbandry, and these, when fixed in the calendar, must occur at the right seasons. It was the duty of the pontifices so to adjust the necessary intercalations as to effect this object—a duty to which they were, as it turned out, quite unequal. But continued city life broke the connection between the festivals and the agricultural work to which they originally corresponded, and what was once a cura of religious import became a secular matter of which the value was not appreciated. So too with another duty, for which both the Romans and ourselves have more reason to be grateful to them—the recording of the leading events of national history.

It is uncertain what prompted the college, or rather its head, to begin making these records, though there is no doubt about the fact. But it would be natural enough that those who had charge of the calendar, which would necessitate some record of years for purposes of intercalation, should go on to mark the names of the consuls and such striking events as would make a year memorable. In any case this was what actually happened. The pontifex maximus, we are told with precision, kept a tabula, or whited board, on which these events were noted down, with the consuls' names attached to them, or possibly a kind of almanac, made out for the whole year, on which they could append their notes to particular days. This yearly tabula was no doubt at first kept secret, like all the pontifical documents, but sooner or later, perhaps at the same time as the publication of the fasti and legis actiones, it was exposed to public view in or at the Regia. This went on for at least two centuries, and the records, which in the nature of things must have grown in length and detail as events became more startling and numerous, were edited in eighty books by the pontifex maximus P. Mucius Scaevola in 123 B.C.—the year of the first tribunate of C. Gracchus. The large number of these books has long been a stumbling-block to the learned, for we are expressly told that the annales maximi, as the records were called, were (in spite of their name) of a very meagre character; and many conjectures have quite recently been made to explain it. But guessing is almost useless, seeing that there are no data for it. The editor may have added matter of his own, amplifying and adorning after the manner of writers of his day; or he may have worked in the contents of other pontifical books, libri or commentarii pontificales. The point for us is simply the continued activity of the pontifex maximus in this work, which must have become almost entirely secular in character. The notes may have been jejune, but they were probably accurate, and free from the perversions of family vanity or such lengthy rhetorical ornamentation as became the universal fashion among private writers of annalistic history. They were, we may suppose, exactly what our modern historical conscience demands. But all that is left of them, or almost all, is the list of consuls (fasti consulares) and of triumphs (fasti triumphales) which in their present form must, or at least may, have been extracted from them. On the whole, we may reckon them as the most valuable work of the college; and they may be taken as marking a growing sense of the importance of Rome and her history, the commemoration of which is thus committed to an official who, as an individual, had invariably served the State well, and in whom all classes had perfect confidence.